Waltner v. United States

          ORDER

          David G. Campbell Senior United States District Judge.

         Pro se Plaintiffs Steven T. Waltner and Sara Van Hoey, who formerly were married, have sued the United States seeking tax refunds from 2013 through 2016. Doc. 1. Defendant United States moves to dismiss Plaintiffs' complaint under Rule 12(b)(1). Doc. 19. The motion is fully briefed and no party requests oral argument. Docs. 24, 29. The Court will dismiss the complaint without prejudice.

         I. Legal Standards. A. Rule 12(b)(1).

         A motion to dismiss under Rule 12(b)(1) can be either a facial or factual attack on jurisdiction. Thornhill Publ'g Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). A facial attack asserts that the allegations in the complaint are “insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). To determine whether jurisdiction exists, the complaint's allegations are taken as true and construed in favor of the non-moving party. Jacobsen v. Katzer, 609 F.Supp.2d 925, 930 (N.D. Cal. 2009) (citing Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996)).

         A factual attack “disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone, 373 F.3d at 1039. In such an attack the plaintiff's allegations are not entitled to a presumption of truthfulness, the Court may look beyond the pleadings to resolve factual disputes, and the plaintiff has the burden of proving jurisdiction. Id. The plaintiff must “present affidavits or any other evidence necessary to satisfy its burden.” St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989).

         B. Subject Matter Jurisdiction over Tax Refund Suits.

         To assert a claim against the United States, Plaintiffs must prove that sovereign immunity has been waived. Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1087-88 (9th Cir. 2007). As a result, “[a]bsent its consent to suit, an action against the United States must be dismissed.” Elias v. Connett, 908 F.2d 521, 527 (9th Cir. 1990).

         Under 28 U.S.C. § 1346(a)(1), federal courts have jurisdiction over civil actions against the United States to recover collected taxes only when certain administrative requirements are satisfied. 28 U.S.C. § 1346; United States v. Dalm, 494 U.S. 596, 601 (1990). A plaintiff must first file an administrative claim for a refund with the Secretary of the Treasury. 26 U.S.C. § 7422(a); Dalm, 494 U.S. at 601-02; see also Tosello v. United States, 210 F.3d 1125, 1127 (9th Cir. 2000). The claim must be filed within “three years of the time the [plaintiff's tax] return was filed or two years of the time the tax was paid, whichever is later.” Yuen v. United States, 825 F.2d 244, 245 (9th Cir. 1987) (citing 26 U.S.C. § 6511(a)). Under the “look-back” provision in 26 U.S.C. § 6511, when a plaintiff files a claim within three years of filing her tax return, she may not recover more than the tax she paid “within the period[] immediately preceding the filing of the claim, equal to 3 years plus the period of any extension of time for filing the return.” 26 U.S.C. § 6511(b)(2)(A). “Plaintiff must satisfy both the filing deadline and applicable ‘look-back' period of § 6511[] in order to demonstrate a waiver of sovereign immunity by the United States.” Family Leadership Found. v. United States, No. 06 CV-678-PHX-SMM, 2006 WL 3218661, at *2 (D. Ariz. Nov. 3, 2006) (citing Omohundro v. United States, 300 F.3d 1065, 1067-69 (9th Cir. 200)).

         A plaintiff may not sue until six months after filing her administrative claim, unless the Secretary issues a decision on the claim within six months. But suit must be brought no later than two years after notice of rejection of a claim. 26 U.S.C. § 6532(a)(1); Sorenson v. Sec'y of Treasury of U.S., 752 F.2d 1433, 1439 (9th Cir. 1985).

         II. Plaintiffs' Complaint.

         Count 1 alleges that Plaintiffs are owed a tax refund from their joint 2013 return, filed on April 25, 2014, and amended on April 15, 2015. Doc. 1 at 5. Documentation from the Internal Revenue Service (“IRS”) shows that Plaintiffs had an overpayment in 2013 of $1, 222, which was applied to an unpaid civil penalty they owed from 2004. Doc. 25-6 at 2-4. Plaintiffs dispute any unpaid liability from 2004.^[1] Docs. 24 at 4-5; 1 at 6.

         Count 2 seeks a tax refund from Plaintiffs' joint 2014 return, filed on April 15, 2015. Doc. 1 at 7-8. IRS documentation shows that Plaintiffs had an overpayment in 2014 of $8, 759.17, which was applied to unpaid tax liability from 2005 and 2007. Doc. 25-6 at 6. Plaintiffs deny liability for those years. Doc. 1 at 8.

         Count 3 seeks a tax refund from Plaintiffs' joint 2015 return, filed on April 25, 2016. Doc. 1 at 9-10. IRS documentation shows that Plaintiffs had an overpayment in 2015 of $6, 038.77, which was applied to unpaid tax liabilities from 2004 and 2007. Doc. 25-6 at 9. Plaintiffs deny liabilities for those years. Doc. 1 at 10.

         Count 4 seeks a tax refund from Plaintiff Waltner's 2016 return, filed on October 30, 2017. Doc. 1 at 11. IRS documentation shows that Waltner had an overpayment in 2016 of $1, 171.76, which was applied to unpaid tax liability from 2008. Doc. 25-6 at 15.

         Count 5 seeks a tax refund from Plaintiff Van Hoey's 2016 return, filed on October 18, 2017. Doc. 1 at 12. IRS documentation shows that Van Hoey had an overpayment in 2016 of $3, 107.93, which was applied to unpaid tax liability from 2007. Doc. 25-6 at 12. Van Hoey denies liability for 2007. Doc. 1 at 13-14.

         Count 6 seeks a refund of civil penalties that Plaintiffs allege they have overpaid. Doc. 1 at 14.

         Count 7 seeks damages under 26 U.S.C. § 7433 related to “Defendant's collection of taxes for 2007 and civil penalties for 2003 through 2008.” Doc. 1 at 14.

         Count 8 seeks damages under 26 U.S.C. § 7432 related to Defendant's alleged failure to release tax liens. Doc. 1 at 20.

         III. Discussion.

         The government's Rule 12(b)(1) motion makes a factual attack. It challenges whether Plaintiffs have exhausted their administrative remedies as alleged in their complaint. See Docs. 19 at 1; 1 at 2. The Court therefore will not presume the allegations of the complaint to be ...